The actual legislature, as you note, is where these fixes need to occur. Using the courts for it is a civics hack, and one that will bite us in the ass.
There's a huge grey area there. Both require the court to insert its judgement instead of that of elected officials making the law. Whether or not they are ruling on "what the law should be" is not a binary determination and different people draw the line in different places. Every judicial act at that level is one of interpretation, and that will always necessarily carry the risk of an interpretation that is not in keeping with the legislative intent. In which case the remedy is additional legislation to clarify that intent.
In this example, should Congress decide monetary damages should not be in the scope of "appropriate relief", they can change the law. Right now there are undoubted some-- the DOJ who fought this issue for example-- who believe the court just "decided what the law should be." That's probably in the nature of most decisions the court makes-- the losing side will thing the court got it wrong.
Seems like that's very hard to square with Citizens or Shelby County, both of which overturned quite clearly written laws with long-accepted interpretations.
The textualism stuff is, at best, an excuse used when the court wants to do nothing. It doesn't limit the court when it wants to make changes. In this case, the court took as narrow a step as possible into the minefield that leads to Qualified Immunity. It's a baby step in the right direction, but it's just a baby step.
In this case, they held the way they did because they did not want to write a broad finding, and absolutely not because their hands were bound by some imaginary principle.
Now.
(Reposting a comment I made elsewhere)
Before Citizens United, any US majority-owned corporation or union was allowed to make political contributions from a segregated fund. The money in that fund could only come from employees and shareholders. This was, in decades of previous legislation and case law, considered sufficient to protect the 1st Amendment interests of associations of individuals. They can pool their money together for political purposes, put they can't pool it with other people's money.
Before the ruling, Citizens United was allowed to spend money on political activity. They were allowed to spend money on political activity close to an election. They were allowed to spend money, close to an election, to broadcast issue-based political advertisement (e.g., for or against a ballot initiative) on TV. They were allowed to spend money distributing their documentary in any way other than broadcasting it on TV. They could show it in theaters. They could put it on the internet. They could print DVDs and mail them out. They could distribute it to PACs and campaigns for them to spend their own money distributing it, including broadcasting by on TV. They could pay money, close to an election, from a segregated fund, to broadcast their documentary on TV. All they weren't allowed to do was spend money, close to an election, on broadcasting something expressing views for or against a political candidate, on television or radio, to an audience of at least 50,000, close to the election.
Corporations were not banned from electioneering before Citizens United. They were restricted. The laws imposing those restrictions went back until at least the early 1900s. There was a century of case law find some such restrictions constitutional. There was a decision in 2003, just 7 years before Citizens United, upholding the very restrictions that CU struck down. The majority's argument rested on the idea that no "identity-based" restrictions on 1st-Amendment rights are constitutional. But there are such restrictions, e.g. against prisoners, students, and employees of the executive branch. These restrictions remain in place today. The majority invented a 1st-Amendment principle and then selectively applied it to corporations. They did so with no fact-finding in the record of the case on whether the provisions they struck down actually chilled free speech. Fact-finding that the government wanted to do before Citizens United (the organization) dropped the issue.
The majority in Citizens United flipped the table on decades of election law that had survived scrutiny several times before without even claiming that any circumstances had changed. They did it solely because they didn't like the outcome. And they bent over backwards to do it.
My point was simply the wording above: the court CHOSE to issue a very broad decision in Citizen's, just as it chose NOT to issue one here. And the reason is just simple desire and not any kind of principle. The court wanted to, and that's as far as it goes. You see the same skew in logic in arguments about Roe, where the same people (like you) who think Citizen's is fine for throwing out huge regulatory areas based on a novel reading of the constitution suddenly think it's "judicial activism" to find a right to medical privacy in the due process clause.
“It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it.”
There is an enormous volume of prior case law that says the same thing.
Regardless, the Citizen's United decision was actually pretty clearly pro-free speech, and abuses by companies may well be cleaned up as time goes on and more cases reach the Supreme Court (or so said Scalia when I asked him, honestly it did sound like he was a little embarrassed about how his opinion turned out)
When you asked him about it? That piqued my interest, what was the context? Why'd he seem embarrassed? The name drop begs for more details :)
Sincerely curious: do you have examples?
Scalia's a controversial justice, to say the least, for a variety of reasons, but I don't quite understand this criticism. (I do understand not liking his jurisprudence or his abrasive style.) He and Justice Ginsburg, for example, were famous friends while holding opposite opinions about how to interpret and read the U.S. Constitution; one would think she would've called him out on blatant dishonesty (intellectual or otherwise)
That seems...implausible:
Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2
The Congress shall have power to enforce this article by appropriate legislation.
> they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on.
The Court (and courts in general) don't tend to look to authorial intent as the original intent that matters, but legislative intent (the intent of the body/(-ies) adopting the provision.) So, the word of the “only living author” wouldn’t be the only thing anyone had to go on; they’d have the records of legislative debates. And an authorial position (even if well-documwnted) that wasn't actively considered in legislative debate would probably not be considered to have much weight.
No they weren't. Money as speech, for instance, was a bedrock of earlier campaign finance decisions stretching back at least to Buckley v. Valeo, 424 U.S. 1 (1976).
https://supreme.justia.com/cases/federal/us/424/1/#tab-opini...
I'm a Brit so have not particular standing in this. If I were a US citizen I would deplore the Citizen's United decision, but not on the grounds of corporate personhood (which as I understand it was never mentioned in the ruling), but rather on the grounds that religious freedom should not grant special rights and privileges not available otherwise. It should be a freedom of belief, not a freedom of action.
Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
So I'm not sure what your point is.
> What’s the difference between a court opining that a law is unconstitutional and a court interpreting a law as unconstitutional?
That question was a reply to this comment:
> Citizens United was based on the law being unconstitutional, not the court’s interpretation of the law.
That comment is referring to two different things SCOTUS can do:
1. Throw out a law because it is unconstitutional.
2. Interpret the law by deciding how it applies in a particular case.
They're saying the Citizens United ruling was of the first type, not the second.
You seemed to miss that, so I was trying to clarify it. That's all.
I did not miss that. I was responding to it. Perhaps you are not understanding what I am saying.
How did they determine CU was of the first type? Did they interpret it to be of the first type, or is there an objective view of it that simply makes it so? And if the latter, where is this objective view located that all can see? And why did 4 of the 5 justices not have access to see the objective view?
In other words: deciding something is unconstitutional and interpreting something as unconstitutional are exactly the same thing. There is no such thing as unconstitutional outside of interpretation.
You read:
> Citizens United was based on the law being [objectively] unconstitutional, not the court’s interpretation of the law [being that it is an unconstitutional one].
I read:
> Citizens United was based on the law being unconstitutional [in the opinion of the court], not the court’s interpretation of [how] the [constitutionally-compatible and therefore still on the books] law [should be applied to Citizens United].
In any case, your read is that the court had an opinion about the constitutionality of CU (which is exactly what it had). And my read is exactly the same: opinion = interpretation.
The supreme court doesn't make a law unconstitutional. It already was or wasn't. They provide notice to the system that the law will now be seen as unconstitutional or not.
If they get it wrong (lets say we know because another SC overrules them in the future) it doesn't change the constitutionality of the law, just whether it's enforceable or not during those periods.
No. If the Supreme Court is asked whether a law is constitutional or not, they form an opinion on whether it is or is not. The law exists as law up until the moment the Supreme Court is asked and interprets it one way or the other. It does not exist as one or the other until that moment, even though it is the law, and after that moment it only exists as one or the other based upon the majority opinion of 9 people. Laws are not discovered to be constitutional or unconstitutional, because interpretations are not discovered, they are formed.
>A law can be so blatantly and obviously unconstitutional that everyone can see it and refuses to arrest or charge people for breaking it.
That doesn't make the law unconstitutional. It just makes it a bad law. Bad laws can also be constitutional.
Yes, every individual judge has their own skills and opinions and as such, sees the legal question slightly differently, and has different legal interests and thus knows some law more than other. We have a nine as a balance between not having enough diverse backgrounds such that we might be missing the critical input some day weighed against the group being to big to be convenient.
> why do we end up with split votes that so often fall down partisan lines?
People are flawed. Let's say some injustice caused you to get into law. You're likely going to be more familiar with that area, and more sensitive to its harms, than another judge. You may not be voting your ideology, you may be there (as a justice) because of your ideology, and you may have your honest beliefs because of your unique experiences.
I often read opinions I don't agree with, but I can see where the justice just had a different life than me and sees things differently.
> Supreme Court opinions literally called opinions, if they are apparently objective?
The only use of objectivity in this thread is yours. But if someone did use that phrasing, they'd mean that the justices should decide the same on the same issue, no matter if it helps a nazi or a nun. Justice is supposed to be blind.
Sure. But it's not random flaws. Liberal people are flawed to believe rules are written as a liberal would interpret them. And conservatives just the opposite. Because the rules do not exist outside of subjective interpretation.
I may be the only person using the word objective in this conversation, but that doesn't mean everyone else in the conversation is not building their arguments on the existence of objectivity in regards to a judges interpretations.
>I often read opinions I don't agree with, but I can see where the justice just had a different life than me and sees things differently.
That's right. Their opinion is nothing more than their interpretation. A couple of people had the opinion that something was unconstitutional. That doesn't mean it is, just that they believe it is.
Justice is supposed to be blind. And the Supreme Court opinion that CU was unconstitutional helps corporations just as it helps pro-choice non-profits just as it helps pro-life non-profits. But at the end of the day, it was 5 people who interpreted it as unconstitutional. They did not make the discovery that it is unconstitutional.
It’s not quite that pure. If there are self-contradictions in the constitution, then that gives them some choice about what to compare the law to. They ought to balance that appropriately, but their biases surely creep in.
You might want to mask "discover the truth" with "finding a provision", but the Supreme Court does not "find provisions that conflict with other provisions", they interpret things to form opinions. In this case 5 of them interpreted a provision to be in conflict with the way they interpreted a provision of the constitution. 4 of them did not share either or both of those interpretations.
Here, the argument isn’t about the constitution. It’s about what “appropriate relief” means in the statute.
Sometimes it is just thrown out to cover bias, but that's not its fault.
You may be right or you may be wrong, anyone can do it, and anyone who does will mostly come to their conclusion based upon their personal political beliefs. Hence, a reason the Supreme Court has so many partisan split rulings.
Textualism is pure nonsense, used to present a false sense of rationality to an opinion. Any self-proclaimed textualist is either deceiving themselves or attempting to deceive others.
No. You're just saying that people have biases and thus everything is a lie.
Textualism is a thing, and exists outside of law. Textualists think that the authors specific words are important. "Why did Tolkien say X? It must matter, he's a careful author."
I value it in the field of law because legal disputes caused by textual confusion can be avoided through careful writing and textualism leads to the type of thinking that is capable of that. And if nobody cared about the words, how sloppy would the thinking also be?
Everything should be. But 95% of everything is really people decrying textualism and actively choosing their ideology.
> it's nonsense used by people to make themselves think they are smart
What nonsense did you use?
Of course the textualist thinks only he is above ideology. This is how you can tell they're clowns.
Is your rudeness caused by a disability?
That’s just, like, your opinion man.
What is the law? A bunch of words. What do those words mean in combination the the surrounding words? Uh oh, we just hit subjectivity.
“Originalism”, “Textualism”, “Absurdism”, etc. are all pure nonsense. Judges, and most particularly Supreme Court judges are definitively expressing their unique opinions as to what a law is, which is identical to “what a law should be”. Someone could attempt to argue that a judge’s opinion of what a law is may not align with what that judge actually believes it should be, but the evidence of consistent partisan split votes makes such an argument particularly weak.
There are a number of judges who 'break the mold' by taking 'unconventional' positions in certain cases. Gorsuch, and Scalia before him are known as a criminal defendant's beset friend when it comes to evidentiary rules, even though nobody would say they were 'soft on crime'. On the other hand, there are judges and justices like Alito, Breyer, and Sotomayor who always find a way to decide cases in favor of their preferred litigant.
Well there are canons of interpretation, each of which describes how one can read and understand what legislation and law mean. You seem to be dismissing the canons as being incorrect, and I'm not exactly sure why.
Do you think it is possible to interpret a law faithfully? What about a contract?
Except there isn't much of this evidence. Supposedly "right wing" justices vote with the "left wing" justices regularly, even often against the other "right wing" justices.
Gorsuch, on the other hand, will hold with a death grip to what he believes the intent of the writer of the law/Constitution was, rather to some desired outcome.
Textualist value the 'system' over immediate outcome, because they really believe they are there to call 'balls and strikes,' hewing as close to the 'rules of the game' as possible.
Someone like Roberts takes the whole enchilada into account- precedent, public reaction, political impact, historical judgement, interactions between the justices themselves, but coming from a conservative PoV, I assume because he thinks thats part of his job as Chief Justice.
I, personally, prefer the textualist approach. It allows the separation of powers to mean something and makes the law at least theoretically responsive to the people via their elected representatives. If the majority wants the law to change, they have the means to do so without waiting for a new set of justices.
Those who want to bypass that by hoping their 'team' stack's the deck- well that only works for non-textualists. Trump is finding out, to his intense disappointment, that all those textualists he nominated to the bench, care not a whit for getting things done for him, but just what the law is, as it is written. So the left should be mighty pleased that the 'other side' doesn't play the game by their rules, and that in this area, at the least, they may want to change their approach.